Crook v. Foster

• Decision Date: 14 November 1914
• Docket Number: 59.
• Citation: 83 S.E. 670,142 Ga. 715
• Parties: CROOK v. FOSTER.
• Court: Georgia Supreme Court

83 S.E. 670

142 Ga. 715

CROOK v. FOSTER.

No. 59.

Supreme Court of Georgia

November 14, 1914

Syllabus by the Court.

Where a mother brings an action to recover damages on account of the negligent and tortious homicide of a minor child, the provisions of section 4424 of the Civil Code of 1910 allowing the mother to recover for such homicide, are sufficiently pleaded, as against a general demurrer, where it is alleged that the mother "was partially dependent upon her said minor child for support, and that said minor child contributed to her support; that she was entitled in law to the services and contribution of said minor child." This, in substance, alleged that the mother, at the time of the homicide, was partially dependent upon the child for support, and that the child was then contributing to her support.

The allegations of the petition showing that the minor child, for the tortious homicide of whom this suit is brought by the mother, was, at the time it received the injuries that resulted in its death, upon a certain porch connected with a mill, of which the child's stepfather was the tenant and in possession and control, and that she went to the place for the purpose of procuring lunch from her stepfather and to accompany him home, it is sufficiently shown that the presence of the deceased upon the premises where she was killed was lawful. And, it appearing from other allegations that the death of the child resulted from a failure of the landlord to repair the defects known by him to exist liability upon his part for damages was shown.

It cannot be said that the allegations of the petition considered altogether, show that the child had been placed in the custody of her stepfather by her mother, so as to destroy the right of action on the ground that the custodian, whom the mother had selected, knowingly took the child to a place of danger.

Error from Superior Court, Cobb County; H. L. Patterson, Judge.

Action by Mrs. J. W. Crook against J. Z. Foster. Judgment for defendant, and plaintiff brings error. Reversed.

This action was brought on account of the homicide of the plaintiff's child, Gladys Martin, caused by the falling of a porch connected with the defendant's millhouse. The allegations were substantially as follows: The child, aged 10 years, was killed at the mill of the defendant, by the falling of a cover, shed, or roof of the porch thereof, she being present on said porch, where she had been waiting for about 15 minutes, "for the purpose of procuring her lunch from her stepfather, J. W. Crook (he being a tenant of said defendant and in charge of said mill property), and for the purpose of accompanying said J. W. Crook to her home." The porch floor sills, supporting the cover shed, or roof, had rotted and sunk away for a distance of six or eight inches, and the post supporting the cover or shed at the right-hand corner was rotted away at its base, and the post next to the corner of the left-hand end of said porch had settled through the base supporting it, allowing said cover, shed, or roof to settle down and pull loose from the building to which it was nailed. A part of said porch and shed was condemned by the council of the town of Roswell, and the marshal of said town, during the month of March, 1910 notified the defendant of such condemnation and directed him to repair or remove said porch floor and cover, which he failed and refused to do. He had knowledge of the defective condition of said porch and roof, and failed to repair them, thereby causing the death of the child. Neither the plaintiff nor the child had knowledge of the defective condition of the said porch or shed. The value of the services of said child is alleged at $25 per month.

"Petitioner shows further that she was partially dependent upon her said minor child for support, and that said minor child contributed to her support; that she was entitled in law to the services and contribution of said minor child."

The defendant filed a general demurrer to the petition, upon the ground that it set forth no cause of action. The court sustained the demurrer and dismissed the action. To this judgment the plaintiff excepted.

T. B. Higdon, of Atlanta, and Clay & Morris, of Marietta, for plaintiff in error.

J. Z. Foster and D. W. Blair, both of Marietta, for defendant in error.

BECK, J. (after stating the facts as above).

The plaintiff bases her right of action upon section 4424 of the Civil Code of 1910, which provides:

"A mother, or, if no mother, a father, may recover for the homicide of a child minor or sui juris, upon whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband, or child. Said mother or father shall be entitled to recover the full value of the life of said child."

1. In the petition it is alleged that the plaintiff "was partially dependent upon her said minor child for support and that said minor child contributed to her support; that she was entitled in law to the services...